HIS HONOUR: By amended summons dated 23 February 2015 the State of New South Wales (the plaintiff) seeks an order pursuant to section 5C of the Crimes (High Risk Offenders) Act 2006 ("the Act") in relation to Brian Allan Bowdidge (the defendant). The summons seeks an order for a high risk sex offender extended supervision order ("ESO") for a period of 5 years. The order requires that the defendant comply with some 46 conditions concerning his conduct.
The defendant was subject to an extended supervision order for a period of 4 years from 18 March 2011. Those orders were made by his Honour Buddin J: State of New South Wales v Bowdidge [2011] NSWSC 188. The background to those orders and the reasons and circumstances in which they were made are detailed with clarity in his Honour's judgment. It is unnecessary in the circumstances to repeat all of the details here. The evidence before me establishes the same factual background that was established before Buddin J in 2011 and which led his Honour to make the orders then made. However, 5 years have passed and the defendant has committed no sexual offences during that period.
The defendant opposed making the order but Mr Johnson who appears on his behalf did not press that position with any vigour. In view of the evidence to which I will presently turn, that was a sensible stance for counsel to take. However, Mr Johnson pressed objections in relation to a number of the specific orders contending either that they were unnecessary or possibly counter-productive. On 4 June 2015 Mr Kell (counsel retained by the New South Wales Crown Solicitor's office) presented the plaintiff's evidence. It is voluminous. Much of that material was provided in advance of the hearing and I had an opportunity to peruse it prior to coming on to the bench. I also had extremely helpful written submissions provided in advance by both Mr Kell and Mr Johnson. No evidentiary material was presented by the defendant.
At the conclusion of the hearing on 4 June 2015, I indicated that I was in a position to make final orders but that I would provide reasons later. The reason for that course was that the applicable time limits would have resulted in various interim orders that had been made since January 2015 expiring on Sunday 7 June 2015.
I made the extended supervision order for a duration of 3 years. I also made deletions to conditions 10, 22, 31, 32 and 33 of the proposed conditions. I made a slight amendment to condition 35. Otherwise the conditions were in accordance with those sought in the summons. These are the reasons for making those orders.
I was satisfied, and there was no dispute, that the offender was a high risk sex offender as that term is defined in section 5B of the Act. I was also satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision". In determining to make the order, and the terms of the order that I made, I took into account the provisions in section 9(3) of the Act:
"9 Determination of application for extended supervision order
(1) The Supreme Court may determine an application for an extended supervision order:
(a) by making an extended supervision order, or
(b) by dismissing the application.
(3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:
(a) the safety of the community,
(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence,
(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs,
(f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 ,
(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order)."
Mr Kell brought to my attention a number of authorities in which various judges of this court had expressed opinions as to the meanings of the words in section 5B(2) and noted that there was some tension in relation to the appropriate standard of proof and matters requiring my satisfaction. However I accept his submission that, whichever approach is adopted, the terms of this section are established in the circumstances of the present case.
The reasons for that conclusion concerns the commission by the defendant of a number of sexual or indecent assault offences against young children, his commission of criminal offences by breaching of certain conduct orders made under the Child Protection (Offenders Prohibition Orders) Act 2004 ("Prohibition Orders Act") and a number of case notes and reports which indicate that the offender is still attracted in an improper and sexual way to young girls.
The sexual offences however, by now, are quite old. He was convicted of indecently assaulting a female under the age of 16 in 1975. He was convicted of indecent assault in 1980. He was convicted of having sexual intercourse with a person under the age of 10 years of age in 1992. On each of those occasions the defendant was subject to non-custodial alternatives to imprisonment. The evidence discloses that the offender has always suffered from an intellectual disability and I have no doubt that the lenient approach taken to sentencing for the offences to which I have referred was in large part the result of the proper application of principles relating to offenders suffering from intellectual disability. However, the defendant's luck ran out in 2002 when he committed two offences of aggravated sexual assault. Those offences were committed on a girl aged seven or eight years-of-age and included both digital and penile penetration of her vagina. He was sentenced to imprisonment for a period of four years and six months with a non-parole period of three years.
The four occasions to which I have made reference are the only occasions on which it has been established (or as far as I can tell, alleged) that the offender committed sexual offences against children. As will be seen, the last of those occurred more than a decade ago. However the offending appeared to escalate in seriousness and the facts of the offences and their repetitive nature gives rise to real concerns as to the defendant's sexual orientation. Those concerns are reflected in a number of psychiatric and psychological assessments that have been performed over the years. The universal view is that the offender suffers from paedophilia.
Although the defendant has not committed any further sexual offences, he has twice in the intervening period been convicted for breaching orders concerning his conduct which were made as a consequence of his earlier sexual offending. In April 2009 he was placed on a suspended sentence of nine months imprisonment as a result of two counts of contravening an order under the Prohibition Orders Act. Those offences related to attempts that he made to contact his daughter in circumstances where that contact was prohibited.
Then, on 19 August 2009 he was again convicted of breaching orders under the Prohibition Orders Act. On that occasion he was living with a woman or attempting to live with a woman who had a child living at the premises. In spite of warnings, the defendant attempted to move in to those premises. He was sentenced to imprisonment for a period of 14 months with a non-parole period of 10 months. He was called up in relation to the earlier suspended sentence and sentenced to imprisonment for a period of nine months.
As far as I can tell, he was released into the community on 28 April 2010 and it was in that context that the orders were made by Buddin J in 2011.
While there is some evidence to suggest that the defendant has had difficulties complying with some of the conditions of the original extended supervision order, for the most part he is to be commended for his efforts. He has largely complied with the conditions and has remained out of trouble for a period of around, or a little less than, five years.
However, while there have been no actions taken on any breaches that he may have committed, there have been occasions when his conduct has been worrying. There is a large body of material in the form of case notes and interviews supporting that proposition. It is unnecessary to refer to these incidents other than in a general way, noting that the proposition that I have just stated is well justified by the evidence. It is put, perhaps euphemistically, that the defendant has difficulties with boundaries. As result of these difficulties he has on occasion made entirely inappropriate comments to support workers, psychologists and the like. For instance he commented on the size of one of the psychologist's breasts. He touched other people in a way that made them feel uncomfortable. Of more concern were comments he made in 2012 when he told one of the support workers that a girl aged 13 or 14 was dressed in such a way that it was "no wonder they get raped". He made a similar comment a few weeks later.
Later that year (on 15 December 2012) he was seen to be looking at a girl of around six to eight years. The caseworker challenged him on the behaviour and asked him what happens when you get focused on a young person. The defendant replied "I just want to take her and have sex". He said that he controlled that behaviour by telling himself that she is not age-appropriate and that he tried to think about more age-appropriate girls.
There are more recent examples of not dissimilar behaviour. For example he was seen to be pursuing a seven-year-old girl whilst at a bowling alley in 2014. There were also complaints made by some neighbours in January 2015 that he had been seen "creeping around the back of the units and looking in through the bathroom windows while a young woman was showering". He was alleged to have put money down her top and was suggested to have been "continually groping the young female neighbour".
There was also an incident when a caseworker discovered that he had been using a social media site (Facebook) at a time when he had been given a "reasonable direction" not to use such sites.
The Court ordered that expert reports be prepared for the purpose of the final hearing and those reports were tendered amongst the material that I have considered. As I have said, the offender has been diagnosed with paedophilia. He also has an intellectual disability. The combination of those conditions explains his "difficulties with boundaries". It also makes his supervision complicated and gives rise to the findings that I have made in relation to the unacceptable nature of the risk that he poses. In the course of interviews with the court-appointed experts he made admissions to having sexual thoughts or fantasies in relation to children. That was as recently as April of this year. On other occasions he was less forthright, telling Dr O'Dea for example that it "was in there in the past… It is all gone now" in relation to his sexual feelings towards children.
There was a vast amount of material and it is unnecessary to detail it all. I am comfortably satisfied in accordance with the provisions of the Act that an extended supervision order must be made. However, in making the order I accept Mr Johnson's submission and his adoption of the words used by Hidden J in NSW v Quinn [2008] NSWSC 1080 that the orders made should provide some light at the end of the tunnel. In other words, if the defendant sees that the controls and strictures over his life are diminished this may foster his rehabilitation. That is a secondary purpose of the making of such orders. The primary purpose is a protective one.
It is possible to attempt to achieve both of these objectives by the fashioning of appropriate orders.
In determining precisely what conditions are to be imposed I have considered that, for the most part, the defendant has been compliant and has worked hard to achieve his rehabilitation. I do not doubt his good will in this regard. In particular, he has been diagnosed with substance abuse disorder and has in the past had difficulties concerning the consumption of alcohol. It seems that alcohol was to some degree involved in his earlier offending behaviour. The material establishes that for a number of years now the defendant has remained alcohol free. That is a significant achievement and one to be commended. Apart from anything else, it reduces the risk that the offender's paedophilic tendencies pose to the community.
The first of the conditions objected to is a curfew condition. This was order 10 in the schedule annexed to the originating summons. The condition sought was that "the defendant must stay at his approved address between 9am and 6pm unless other arrangements are approved by his DSO". I was (and remain) persuaded by Mr Johnson's submission that this condition is an unnecessary stricture in all of the circumstances. The unacceptable risk that the defendant poses is directed towards children. It seems unlikely that he would come into contact with unsupervised children after 9 o'clock at night. In any event, the other conditions of the extended supervision order are such that the curfew condition is unnecessary. The defendant is required to, and has for the last several years, provided a schedule of his movements for each seven-day period. That is to be provided to the supervisor of the ESO (the "DSO") 3 days in advance of the period. The DSO is then in a position to give reasonable directions as to the defendant's movements. In other words, his movements in a sense can be disapproved and a failure to comply with that disapproval (in the absence of a variation to the orders) would result in a breach of the ESO and the commission of an offence carrying five years imprisonment. The curfew condition in the circumstances is unnecessary.
The next condition to which objection was taken was condition 22 that "the defendant must not enter any licensed premises without the prior approval of his DSO. I have some difficulty with this condition given the problems that the defendant has had with alcohol in the past and, in particular, the relationship between his offending behaviour and the consumption of alcohol. I was initially persuaded by Mr Kell's contention that allowing the defendant to enter licensed premises was to put him in the way of temptation.
However, again, a number of conditions in the ESO provide an effective control of the defendant's attendance at licensed premises and his use of alcohol. There is the requirement for him to provide those weekly schedule of movements to which I have already referred. Further there is a requirement that he comply with breath testing and urinalysis to test for alcohol and drugs. Presumably if the DSO is aware that the defendant is to attend licensed premises, they will be in a position (as has happened in the past) to provide some form of surveillance at least in the early stages and to subject the defendant to breath tests thereafter to ensure that he is complying with his condition that specifically prevents him not to take drugs or to use alcohol. For those reasons, I declined to order the condition sought in relation to the entry into licensed premises.
The next objection was to order 25 which was "the defendant must not associate with people that his DSO tells him not to". It seemed that the major concern for the defendant here was that over the last little while there have been conversations (the aetiology of which is not completely clear) that has led the defendant to desire to visit an adult sex worker.
There is no evidence one way or the other as to the therapeutic benefits of him doing so, but there is no reason to suggest that his visiting an adult sex worker in a safe and (to the degree possible) supervised manner would be adverse to his rehabilitation or increase the risk that he poses to children. However the amendment sought to condition 25 appeared to me to be unnecessary. In the end, what was sought was some kind of notation to the effect that the DSO is not to unreasonably withhold their consent to him visiting an adult sex worker. There is nothing to suggest that it would do so and the supervision that he receives from the Community Justice Program (and its delegate New Horizons) appears to be positive and supportive. The impression I got when the matter was canvassed in court was that they may well be prepared to go with him to appropriately approved premises. For this reason, the amendments sought were unnecessary and I propose to make order 25 in the terms that the plaintiff seeks it. I doing so, I express the hope that those supervising the order will respect the defendant's right to visit a sex worker if that is what he chooses to do.
The next conditions to which objection was taken by the defendant were conditions 31, 32, 33 and (with some diffidence) orders 34 and 35. Orders 31, 32 and 33 are orders requiring the defendant to submit to certain searches of his home and his person. No such conditions were part of the original order and none of the evidence to which I have been directed suggests that such a condition is necessary, appropriate or helpful in terms of the objectives of the Act. Mr Kell suggested that it would facilitate compliance and serve the protective purposes of the Act in the event that the defendant was found to be in possession of "children's toys" or of photographs of children living nearby. I have been directed to no evidence that suggests that these are truly issues in this case. I have reached the conclusion that to impose such a requirement at this stage is unnecessary, particularly so many years after the original ESO when no variation has ever been sought to include such conditions and where there is nothing to indicate that the defendant possesses the kinds of material referred to Mr Kell. Accordingly, I declined to make the conditions 31, 32 and 33.
However I made conditions 34 and 35. Condition 34 requires the defendant to allow a search of his mobile phone "phone tablet device data storage device or computer". Condition 35 requires him not to destroy or interfere with anything on those devices in advance of such a search. In view of the incident that I have described when the defendant operated a Facebook account against a "reasonable direction" not to do so, I am of the opinion that the order allowing the supervising officers to interrogate the defendant's devices is appropriate and serves the protective purposes of the Act. It is notorious that paedophiles in the community often make first contact with innocent children who have accounts on social media. It will also ensure that the defendant is not tempted to visit sites displaying child pornography. For those reasons, I made the conditions sought by the plaintiff.
The final order in relation to which there was controversy and to which the defendant objected was the final order stating that "the defendant must accept the assistance and services made available to him by the Community Justice Program". The objection was based around the fact that the operation of the order has to date has resulted in an extremely lonely and isolated life. It was put to me from the bar table (and I accept) that the defendant's outings are almost entirely supervised or chaperoned. While the plaintiff was able to point to two occasions when the defendant has gone on unsupervised outings, those were very minor trips to the supermarket to buy groceries and he was subject to surveillance. Nothing adverse or troubling occurred.
The defendant did not lead evidence on this issue and, while I do not doubt what was said to me from the bar table, there is no evidence before me to suggest that those administering the orders have a hard-and-fast policy that require the defendant to remain at home unless he is accompanied. Mr Johnson, in making his submissions in earnest, was unable to say whether his client had ever sought to take such an outing and been refused. It may be that he feels that such requests would be declined. However there is no evidence to support this.
Ultimately, I was persuaded to make the order based on things that the defendant has said. In particular, the defendant has said that the presence of the officer from New Horizon for the Community Justice Program has stopped him from doing things his paedophilia may have otherwise led him to do. I have already referred to these acts or at least some of them but it is worth repeating. He has said that he did not act on certain urges because of the presence of the Community Justice Program Officers. He openly and unguardedly said that, had the officers not been present, he may have re-offended by interfering with a child. Whilst the comment is some years old it remains a matter of real concern given the boundary issues that have been identified, the defendant's intellectual incapacity and the defendant's paedophilia.
If circumstances arise where the defendant or his legal representatives form the view that permission to take unsupervised outings is being withheld unreasonably and his freedom of movement is being curtailed, it is open to him to make application for variations of the orders made on 4 June 2015.
One of the fundamental issues between the parties concerned the length of the order. Two of the court-appointed experts were of the view that the order should last for five years. This was based on the chronic nature of the defendant's paedophilia. The other court-appointed expert indicated that an order of between three and five years would be appropriate. The types of orders he made are protective and preventative. The fact is that the defendant has for the most part fastidiously complied with the orders made and it is not possible with any degree of certainty to determine whether he will be doing so in three years' time. The orders necessarily involve an intrusion into his rights of privacy and his freedoms. That is a consequence of his offending behaviour and his nature. I formed the view that it is appropriate to make the order for the period of three years rather than the five years sought by the plaintiff. It is open to the plaintiff to bring a further application for an extended supervision order whereupon more up-to-date and precise information concerning the defendant's prognosis and the risk that he poses to the community at that stage. Dr Collins in particular noted that the defendant sexual habits may change as he gets older; he is now 55 years of age. While acknowledging the force of the plaintiff's argument and noting the chronic nature of the defendant's condition, I came to the view and remain of the view that an extended supervision order for a period of 3 years was sufficient to serve the protective purposes of the Act.
For those reasons I made the orders on 4 June 2015. I repeat the expression of gratitude to both sets of legal representatives for the manner in which the case was conducted and the efficiency of their submissions.
[3]
Monitoring and Reporting
The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
The defendant must report to the Departmental Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him.
[4]
Electronic Monitoring
4. The defendant must wear electronic monitoring equipment if and as directed by the DSO or any other person supervising him.
[5]
Schedule of Movements
5. If he is asked to, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
6. If the defendant wants to change anything in his schedule of movements after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
7. The defendant must follow his schedule of movements except in an emergency.
8. The defendant must accurately, to the best of his ability, answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.
[6]
Accommodation
9. The defendant must live at an address approved by his DSO.
10. [Deleted]
11. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time.
12. The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
13. The defendant must not permit any female under the age of 16 years to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.
[7]
Restrictions on movements
14. The defendant must not leave New South Wales without the prior approval of the Commissioner.
15. The defendant must hand-over his passports to the Commissioner.
16. The defendant must not go to a place if his DSO tells him he cannot go there.
17. The defendant must not go to places attended by female children 16 years or under including schools, libraries, amusement parlours, amusement parks and theme parks unless he has prior written approval of the DSO, and he is with someone who has been approved in writing by the DSO.
[8]
Employment, Education & Finance
18. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
19. The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO.
[9]
Drugs and Alcohol
20. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
21. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
22. [Deleted]
23. The defendant must participate in alcohol programs and courses as directed by his DSO, and must not leave such programs and courses without prior approval of his DSO.
[10]
Association with Children
24. The defendant must not approach or have contact with any females who he knows are under 16 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.
[11]
Associations with Others (not children)
25. The defendant must not associate with people that his DSO tells him not to.
26. If the defendant starts a relationship with someone, he has to promptly tell his DSO who may want to tell the person about his criminal history.
27. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service
[12]
Access to the Internet & Telecommunications Devices
28. The defendant must give his DSO a list of all phones and computers plus any devices with internet access. The defendant must tell the DSO all his phone numbers, service provider account numbers, email addresses and user names, as directed.
29. The defendant must obey any reasonable directions by his DSO about phones and computers plus devices with internet access
30. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
[13]
Search and Seizure
31. [Deleted]
32. [Deleted]
33. [Deleted]
34. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
35. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to condition 34 above.
[14]
Personal Details and Appearance
36. The defendant must not change his name from Brian Alan Bowdidge or use any other name without the prior approval of his DSO.
37. The defendant must not change his appearance without the prior approval of his DSO.
38. The defendant must let CSNSW photograph him.
39. If the defendant gets a new driver licence or other identification card, he must show the DSO.
[15]
Medical Intervention & Disclosure
40. The defendant must tell his DSO the name and address of his doctors, psychologists and counsellors.
41. The defendant must attend all psychological and psychiatric assessments and treatment that his DSO tells him to attend.
42. The defendant must take all medications that are prescribed to him by his doctors.
43. If the defendant stops taking medication as prescribed, the defendant must tell DSO within 24 hours.
44. The defendant must agree to his doctors, psychologists and counsellors sharing information, including reports on his progress and information he has told them, with each other and with his DSO.
45. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
46. The defendant must accept the assistance and services made available to him by the Community Justice Program.
Note: Conditions 3, 41 and 42 do not require the defendant to participate in treatment or take medication without his informed consent
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Decision last updated: 11 June 2015